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Residential Landlord Considerations

Emergency and other police matters involving tenants can represent difficult situations for residential landlords, and can potentially lead to legal issues if not properly handled. A landlord will want to be cognizant of instances when permitting emergency personnel and law enforcement entry into leased apartments may be necessary without the formal consent of the tenant.

Lease agreements often fail to address these types of situations, creating a legal grey area. There are no clear cut or one-size-fits-all answers to this issue, as the individual circumstances dictate what actions should be taken. Ultimately, the best course of action may be to implement lease provisions prior to an incident occurring that protect the landlord without sacrificing the privacy rights of the tenant while also adhering to public policy considerations.

Much of this article is geared to a multiple residential complex with that includes a lobby to screen visitors prior to entry. However, the case law and suggestions are applicable to residential leases in general. Where provisions to address emergency and police entry are not in place in the lease, the following guidelines are applicable:

Basic Emergencies:

Where a health or safety emergency exists, Maryland law permits the landlord to enter a tenant’s unit without advance notice. This includes the obvious conditions of a water leak, fire, or anything that threatens the health and safety of the tenant in the unit as well as surrounding tenants. Law enforcement or medical personnel responding to a 911 call fall into this category as well.

Where the tenant is unresponsive to calls from the front desk followed by a knock at the door with a reasonable amount of time to respond, the “foreseeability of harm concept” set forth in Maryland case law supports the imposition of a duty upon the landlord to abate the harm. In other words, the nature of the harm that may result in the event that entry is not permitted must be taken into consideration. Where there is a risk of personal injury or death to the tenant from a failure to exercise due care, the landlord must act and permit entry to emergency personnel summoned when the resident does not respond to calls from the front desk or a knock on the door.

In this instance, the police would enter to check on the health of the resident but not to search the apartment. A search of the apartment under these circumstances would be conducted only if the resident gives consent or there is obvious criminal activity occurring, which leads to the next topic.

Complicated Emergencies:

The landlord must also keep in mind that there are certain types of searches that do not require a warrant. If a police officer were to see illegal or inauspicious activity, a warrantless search may be conducted. This might include the presence of illegal drugs, someone severely or fatally injured, or someone attempting to escape the premises through another door or window. At that point, it is doubtful the police would ask for the landlord’s consent to search as there is law governing their actions in play. It will be up to the court to decide if the police went beyond the bounds permitted by law.

Police Access without Emergency or Warrant:

Case law in Maryland provides that a landlord may not give a valid consent for police to search a renter’s home without a warrant, the tenant having a superior right to possession at least for the duration of the agreed rental period. Therefore, short of an emergency as outlined in the first point above, the police should not be permitted entry without a warrant. There would be nothing wrong with the landlord refusing entry under these circumstances. Common sense, not the law, would require at a minimum that the landlord notify the tenant of the situation at that time.

Police Access with a Warrant:

The property management should notify a tenant when a valid warrant is made known to the landlord. If it is an arrest warrant as opposed to a search warrant, then the front desk’s only obligation is to call the tenant. The landlord is not required to physically go to the door to knock in that case. The officer will have to return to find the tenant at home. Yet, once again there may be exceptions if the person to be arrested is considered to be armed and dangerous. The law governing in these situations is found is the 4th Amendment to the U.S. Constitution, which many argue has been eroded over the years. Still, the standard is one of “reasonableness” for law enforcement and while there is a plethora of cases about what is and what is not reasonable, it is certainly a standard that a landlord can employ when addressing situations of this type.

There is a warrant commonly known as a “no knock” search warrant. This is where law enforcement authority believes the tenant and/or what’s inside the tenant’s unit may present a danger to police, the public, other tenants, and individuals inside the residence. A no knock warrant permits forceful entry if necessary. In a “no knock” situation, police are going in whether the tenant or the landlord consents to the search. For the landlord’s purposes, this situation generally falls into the emergency category in that the threat of criminal activity impacting other tenants is tantamount to the privacy rights of the tenant subject to the warrant.

Emergency Provisions in the Lease Agreement:

Landlords and property managers can still come into legal conflict even when understanding these principles. Installing appropriate protections through legal provisions in lease agreement documents is among the best courses of action to prevent legal troubles. These provisions would define situations that constitute a threat to the health and safety of the tenants of a property, and declare when the landlord has the explicit right to permit entry into a tenant’s home due to specified circumstances such as emergency or lack of responsiveness. It would also specify the recourse of any liability that occurs as the result of that type of entry, such as the discovery of illegal activity.